ONTARIO COURT OF JUSTICE DATE: 2022-04-22 COURT FILE No.: Ottawa 22-R15446
B E T W E E N :
HER MAJESTY THE QUEEN
— AND —
BRIGITTE CLEROUX
Before Justice Robert Wadden
Plea on January 14, 2022; Submissions on March 15 & 30, 2022 Reasons for Sentence on April 22, 2022
Mr. Moiz Karimjee…………………………………………Counsel for the Crown Mr. Ron Guertin……………………………………….Counsel for the Defendant
WADDEN, J.:
SENTENCE
1Brigitte Cleroux pleaded guilty to seven offences, including personation, fraud, assault and assault with a weapon in relation to her fraudulently assuming the identity of a nurse, taking jobs and receiving salaries for that and performing procedures on patients without their informed consent. Between February and August 2021, Ms. Cleroux obtained jobs at two medical clinics using false nursing credentials. She performed medical tasks on patients, including administering needles and injecting medication. After her deception was discovered, Ms. Cleroux was arrested, and she has been in jail since August 23, 2021.
2This was not the first time Ms. Cleroux committed the crime of impersonating a nurse. In 2011, she was convicted of offences that included impersonating a nurse in Alberta. In 2017 she committed the same offence in Ottawa, fraudulently working as a nurse at three seniors’ homes.
3Given the nature of these offences and the extensive criminal record of Ms. Cleroux, the Crown seeks a sentence of 10 years jail. Counsel for Ms. Cleroux acknowledges a penitentiary sentence is appropriate, but seeks a sentence in the range of four to five years, less pre-sentence custody.
Facts
4The facts are set out in detail in the Agreed Statement of Facts. Starting in February 2021, Ms. Cleroux sought employment in Ottawa using a forged resume in the name of Melanie Smith. Ms. Smith is a qualified nurse employed in Vancouver; Ms. Cleroux is not a qualified nurse, but she passed herself off as one using these forged qualifications. In July 2021, Ms. Cleroux successfully applied, under the name of Melanie Smith, for a nursing position at Originelle Fertility Clinic and Women’s Health Centre, was hired and began work there on July 26, 2021. She performed nursing duties that included injecting patients with intravenous needles and administering drugs. At least eight identified patients were involved, and Ms. Cleroux admits that the acts of administering needles to those patients in the context of fraudulently posing as a nurse constitutes assault with a weapon. Ms. Cleroux’s work at that clinic ended on August 11, 2021, after she had a confrontation with a nurse who was concerned about the way she was administering care to a patient. Ms. Cleroux abruptly quit work at the clinic. After she left, the nurse who confronted her began a complaint with the nurse’s college, only to discover that “Melanie Smith” was not a registered nurse in Ontario, leading her to discover the identity of the accused as Ms. Cleroux. The police were called to investigate.
5Days later, on August 16, 2021, Ms. Cleroux again applied for a nursing position, fraudulently passing herself off as Melanie Smith. Her application was successful and she was hired as a nurse at Argyle Associates. She fraudulently worked at Argyle until August 23, 2021, and dealt with at least 12 patients, including a child. She admits that her acts of physically dealing with the patients, including removing needles, constituted assaults, as the patients were deceived about her qualifications.
6Ms. Cleroux was arrested on August 23, 2021, when she went to the Originelle clinic to obtain her last paycheck. She was on lunch break from her job at Argyle and wearing an Argyle nurse’s uniform when arrested.
7Ms. Cleroux has a history of committing this same crime – fraudulently obtaining employment as a nurse. In 2011, she was convicted in Alberta under the name of Brigitte Denise Marier of fraudulently working as a registered nurse in 2007 and again in 2008. In 2017, Ms. Cleroux had fraudulently obtained work as a nurse at several senior homes in Ottawa, working from September to December 2017. At one of the homes, she took cheques from a 102-year-old resident, stealing over $23,000 from him.
8At this sentence hearing the Crown called evidence, which I accepted, that in 2020, prior to the offences before me, Ms. Cleroux, while on parole in British Columbia, had obtained a job in a medical clinic using fraudulent nursing credentials, although she did not actually work as a nurse in that position.
9Ms. Cleroux has an extensive criminal record, with sixty-seven convictions as an adult, in addition to youth convictions. The majority of the convictions are for fraud, attempted fraud, theft, personation or using false documents. She has served numerous jail sentences, including three penitentiary terms. For a series of convictions from 1992, 1993 and 1994, Ms. Cleroux served a global sentence of two years, six months; her offences included multiple frauds, personation and forgery. In 2011, she was sentenced for offences in Alberta including the personation of a nurse, as well as personation of a teacher and other fraud related offences. In 2018, she received a sentence of over two years for convictions entered between February to November 2018, including defrauding a landlord for rent, the theft from the elderly resident of a care home and theft from a small business owner. According to Corrections Records, Ms. Cleroux also has convictions in the United States for larceny and possession of counterfeit documents in 1992, for which she served some detention and probation. She apparently incurred further charges in the U.S. from 2000-2002, although the outcome of those are unknown. The psychiatric report details the long array of fraudulent offences Ms. Cleroux committed over the years, including many incurred while she was under sentence for prior offences.
Background of Brigitte Cleroux
10Extensive background information on Ms. Cleroux was provided for this sentence hearing through a Pre-Sentence Report (PSR) and a psychiatric assessment prepared by Dr. Wood of the Royal Ottawa.
11Ms. Cleroux is fifty years old, unmarried and has an adult daughter. She was born and raised in Ottawa. The PSR describes Ms. Cleroux having a troubled relationship with her parents that led to crimes of theft as a youth. Ms. Cleroux later moved the United States, where she obtained criminal convictions in Florida. She moved to Colorado where she studied nursing for two years, but did not finish the program. Ms. Cleroux has shown over the years that she is capable of legitimate employment – she received training in the beauty industry and has done some work in that field, and she has also worked as a restaurant manager. She spent some time in B.C. employed as an Unregulated Care Provider (UCP), a health care job that does not require licencing. Although she was legally entitled to hold that job, she left it to fraudulently seek work as a nurse because it paid more than the UCP work. The author of the PSR noted that Ms. Cleroux “has incurred Fraud charges consistently since her youth, admitting that her behaviour was motivated by financial gain.” The psychiatric report cited previous comments Ms. Cleroux had made that “she would engage in fraud to soothe her feelings rather than experience emotional discomfort, and she tended to be impulsive for most of her life” and she had a “desire to present a façade that showed she was successful based solely on the items she owned.”
12According to the reports before me, Ms. Cleroux has a very limited social circle, indicating in part that although she developed friendships in B.C., she could not maintain them because she had lied to them about her identity. Ms. Cleroux’s relationship with her daughter has been affected by the significant periods of incarceration over the years. Ms.oux’s daughter told the psychiatrist she did not know her mother very well, and that her mother had never discussed her criminal history with her.
13Ms. Cleroux does not suffer from addictions; drugs and alcohol are not issues for her. Dr. Wood, who prepared the psychiatric report, diagnosed Ms. Cleroux with a cluster of personality disorders with strong antisocial, borderline and narcissistic traits. Dr. Wood’s diagnosis includes Antisocial Personality Disorder, which is a pervasive pattern of disregard for and violation of the rights of others. It also includes Borderline Personality Disorder, which is a pervasive pattern of instability of interpersonal relationships and self-image and includes marked impulsivity. The doctor also diagnosed Narcissistic Personality Disorder, which includes being interpersonally exploitative, wanting to be perceived as having a higher status, and lacking empathy at the time of committing her offences. Dr. Wood also diagnosed a depressive disorder related to her current legal predicament and parent-child relationship problems.
14Dr. Wood stated in his report that he is pessimistic about Ms. Cleroux’s prognosis, “particularly since she has an extensive and long-standing criminal history of repeated behaviours that often involve taking advantage of others or misleading for personal gain”, including “accumulating further charges while still on parole and under supervision…” Dr. Wood also voiced concern that although Ms. Cleroux acknowledged committing her offences, she tended to place blame externally and paint herself as the victim.
15Dr. Wood notes that although the crimes Ms. Cleroux committed were serious and included assaults and assaults with a weapon as a result of performing nursing tasks fraudulently, there is no indication in her crimes that Ms. Cleroux ever had an intention to physically harm others, and he did not note a high risk of violence in the future.
SENTENCING PRINCIPLES & RELEVANT CASES
16Of the range of offences before me for sentencing, the maximum penalty for Ms. Cleroux’s offences of Personation (s. 403), Utter Forged Documents (s. 368) and Assault with a Weapon (s. 267) are ten years; the remaining offences have maximum sentences ranging from two to five years.
17The principles of sentencing set out in s. 718 of the Criminal Code state that “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society …”, and go on to state that specific objectives of sentencing are to “denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; … to deter the offender and other persons from committing offences; … to separate offenders from society, where necessary; [and] to promote a sense of responsibility in offenders.” An overarching principle is, as stated in s. 718.1 of the Code, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
18In the submissions before me, few cases were cited that had similar facts to Ms. Cleroux’s case.
19Some of the most relevant comments in caselaw are found in the judgment of the Alberta Provincial Court in R. v. Marier, 2011 ABPC 182, which was a sentencing decision involving Ms. Cleroux, who was then going by the name of Marier. As noted by Justice Barley in that case, most authorities available for fraud cases are of limited value since they deal with defrauding of large sums of money, whereas the seriousness of Ms. Cleroux’s offences are the obtaining of fraudulent positions, including, in that case, positions as a nurse based on forged credentials on two occasions, in 2007 and 2008, and a position as a teacher in 2009. Justice Barley stated, at para. 62:
Both the education and medical systems are of great importance to the public. People must have faith that individuals in these systems are qualified. The only way that this can be ensured is to have qualifications put in place by the authorities, and then have those requirements rigorously enforced. The use of forged documents attesting to these qualifications makes a mockery of attempts to ensure that the public is well served by qualified individuals.
20In that case Ms. Cleroux had also pled guilty to numerous other frauds and impersonations, and to presenting fraudulent documents to the court at the sentence hearing. The total sentence imposed was 5 years, less pre-sentence custody. Justice Barley attributed 30 months of the sentence to the offences of using false qualifications to obtain work.
21In R. v. Marier, Mr. Justice Barley cited R. v. Gerhard, 168 A.R. 370, also from the Alberta Provincial Court, in which an offender forged qualifications as a doctor and fraudulently practiced as a psychologist for over two years. Gerhard was sentenced to four years imprisonment, with the judge in that case noting that this was a serious breach of trust against the members of the public who relied on his qualifications as a medical professional.
AGGRAVATING AND MITIGATING FACTORS
22In considering the aggravating and mitigating factors in this case, I have to consider the impact on the victims. Numerous Victim Impact Statements were filed. One patient [1] of Originelle Clinic described how the fertility IVF process is already one that is “stressful, costly and filled with anxiety and fear” and how the knowledge that she was treated by a fraudulent nurse caused her stress that led to her going into therapy. Another patient [2] of the fertility clinic spoke of feeling a “strong sense of betrayal, particularly since one’s health care team is in a position of authority and our natural instinct is to trust those administering medication and performing physical procedures …” Another patient [3] of the fertility clinic described how she lost faith in the clinic as a result of this. The mother [4] of a child patient of the Argyle Clinic described the stress of knowing her daughter was tended to by Ms. Cleroux who did not actually have nursing qualifications. Furthermore, there is reputational damage to the victim of Ms. Cleroux’s identity theft, the real nurse Melanie Smith, and to the medical clinics that Ms. Cleroux defrauded.
23The aggravating factors are numerous. Ms. Cleroux’s crimes of impersonating a nurse for her own financial gain are far worse than many other types of financial fraud. Ms. Cleroux fraudulently put herself in a position where she would be physically handling patients, even injecting them with needles. Any physical actions she took with patients were done under fraudulent pretences and were assaults, and the acts of injecting them with needles were assaults with a weapon. This was a fraudulent personation that had an inherent aspect of physical violation of unknowing victims.
24Furthermore, the impersonation of a health care professional strikes at the core of the trust our society puts in our health care system. Canadians trust that there is a rigorous education and qualification system for nurses in this country, as well as active professional colleges to supervise them. The actions of Ms. Cleroux cause everyone to doubt the integrity of the health care system and the trust placed in the nursing profession, one of the most hard-working and highly regarded professions in this country.
25The criminal record of Ms. Cleroux is also an aggravating factor. Not only does Ms. Cleroux have a long record for fraud, theft and personation but she has a criminal history of committing exactly this same crime of impersonating a nurse. Ms. Cleroux has received lengthy penitentiary sentences in the past, and has not been deterred from committing further crimes, including repeating the same criminal acts. She has not been deterred by the clear statements of previous judges describing how serious these crimes are. She was not deterred from fraudulently seeking employment as a nurse even while on parole. She has had the opportunity to hold legitimate employment and instead has chosen a lifestyle as a criminal fraudster.
26As far as mitigating factors go, Ms. Cleroux is to be given credit for her plea of guilty, which is an acknowledgement on her part of her wrongdoing, and which has saved valuable court time. It avoids having witnesses testify and provides for a certainty of outcome, both of which are societal benefits. In court, Ms. Cleroux apologized to each of the affected clinics.
27There is little else to point to as mitigating factors. Ms. Cleroux has very little, if any, community or family support. She has a history of re-offending while on release. Although there is a psychiatric diagnosis, it does little to provide mitigation of her wrongdoing or hopes for successful treatment. Her underlying diagnoses are personality disorders. She is noted as being exploitative and having limited remorse. The psychiatrist is pessimistic about her prognosis. Although there is some therapy Ms. Cleroux could engage in, the rehabilitation for Ms. Cleroux will only occur if she changes her behaviour, which she has not been inclined to do.
APPROPRIATE SENTENCE
28In imposing an appropriate sentence on Ms. Cleroux, denunciation and deterrence are paramount considerations. Ms. Cleroux’s fraudulent impersonations of a nurse breached the trust our society places in the health care system and the highly regarded profession of nursing. This behaviour must be denounced in the clearest terms. A sentence must be imposed that would deter anyone else who might engage in this behaviour for their own financial gain. Furthermore, a clear message must go to Ms. Cleroux, specifically, that her repeated criminal acts will receive strict sentences in light of her long criminal record and her failure to stop committing fraud. There are few offenders for whom specific deterrence is more necessary.
29Ms. Cleroux was not deterred by a five-year sentence in 2011, nor by numerous lesser sentences she incurred after that. She has repeated the exact same crime – impersonation of a nurse – that she has been found guilty of in the past. These are crimes that involved planning and premeditation on the part of Ms. Cleroux, by preparing and using forged documents, and then continuing to engage in ongoing fraud on a daily basis during the time she worked at each clinic.
30In my view, the sentence imposed must be longer than previous sentences imposed on Ms. Cleroux for this behaviour. The portion of Ms. Cleroux’s 2011 sentence allocated to the nursing and teaching frauds was 30 months. Given the need for deterrence, each offence before me of impersonating a nurse requires a sentence higher than that. I take into account that the crimes before me occurred over a relatively short period of time, although it is aggravating that they involved two clinics. I am taking into account principles of totality, and the importance of imposing an appropriate sentence without crushing all hope of rehabilitation. I am also taking into account that Ms. Cleroux has pled guilty – in the absence of that a longer sentence would be merited. In light of all of those factors, a sentence lower than the ten years sought by the Crown is appropriate. A lengthy penitentiary sentence must be imposed, but a sentence of ten years on this fifty year old non-violent offender would be excessive.
31My conclusion is that a total sentence equivalent to seven years is necessary to properly address all the objectives of sentencing. Of the total sentence to be imposed, the impersonation of a nurse at the Originelle Fertility Clinic will receive a sentence of three years. The subsequent act of impersonating a nurse at the Argyle Clinic was a separate crime, in which Ms. Cleroux once again presented forged documents and fraudulently worked as a nurse, this time impacting a new set of patients. A consecutive three-year sentence will be imposed for that crime. Finally, the counts of Assault with a Weapon and Assault are worth a consecutive one-year jail. While it has been argued that those acts were incidental to the impersonation of a nurse, and should receive concurrent time, I disagree. At both Originelle and Argyle, Ms. Cleroux chose fraudulent employment that put her in physical contact with patients, including giving injections to women undergoing fertility treatments. It is one thing to impersonate a nurse and defraud the clinics of money; it is another thing to follow through and physically deal with the patients under that pretence. The assaultive acts are worthy of one year of consecutive time. The counts relating to forged documents are so closely related to the offences of personation that concurrent sentences will be imposed.
CREDIT FOR PRE-SENTENCE CUSTODY
32In calculating the credit to be given for pre-sentence custody, I note that Ms. Cleroux has been in custody since August 23, 2021, which is almost exactly eight months. Crown counsel asks me to give credit on a 1:1 basis, arguing that because of Ms. Cleroux’s criminal record and poor history on parole she would be unlikely to get parole for these offences and should not benefit from enhanced credit.
33In R. v. Summers, 2014 SCC 26, the Supreme Court discussed the issues justifying the granting of enhanced credit for offenders who have served pre-sentence custody, specifically the qualitative nature of the detention, which includes crowded facilities and lack of programming, and the quantitative nature which takes into account that most offenders will be released on parole before serving their full sentence. On this second point, the Supreme Court noted, at para 25, that
In practice, the “vast majority of those serving reformatory sentences are released on ‘remission’ . . . at approximately the two-thirds point in their sentence”, and only two to three percent of federal prisoners are not released either by way of parole or “statutory release”: C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §§13.38 and 13.39.
34The Court further stated, at para. 75
For many offenders, the loss of eligibility for early release and parole will justify credit at a rate of 1.5:1. However, as Beveridge J.A. concluded, it is not an “automatic or a foregone conclusion that a judge must grant credit at more than 1:1 based on loss of remission or parole” (Carvery, at para. 60). If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity.
35And at paras. 78-79, held that
… judges are often called upon to make assessments about an offender’s future, for example by considering prospects for rehabilitation. I see no reason why judges cannot draw similar inferences with respect to the offender’s future conduct in prison and the likelihood of parole or early release.
The process need not be elaborate. The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available. Similarly, if the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process.
36Having considered all the evidence before me, I am not prepared to find that Ms. Cleroux is such a dangerous offender that early release and parole will not be available. Ms. Cleroux has committed serious offenses, and she has a long related criminal record and a poor history while on parole. These are issues for the parole board to take into consideration at the appropriate time, years from now, when Ms. Cleroux may apply for parole. The board may find that under appropriate conditions and supervision Ms. Cleroux is eligible for parole, or they may not. I am not prepared to make a finding, at this point, that Ms. Cleroux will be in the very small percentage of offenders – two to three percent – who are not granted parole.
37I will apply the R. v. Summers credit at a rate of 1.5 to 1, which equals twelve months credit for the eight months of pre-sentence custody Ms. Cleroux has served.
38Counsel for Ms. Cleroux asks me to consider further credit, pursuant to R. v. Downes (2006), 79 O.R.(3d) 321 (C.A.), due to the harsh circumstances of serving pre-sentence custody during the COVID-19 pandemic. Evidence has been provided before me showing that Ms. Cleroux has been subject to lengthy lockdowns. The records before me, and the experience in these courts for the last few months, make it clear that Ms. Cleroux has been incarcerated during one of the most difficult periods at the detention centre, including when there has been a full COVID outbreak declared.
39The process to follow in granting extra credit for pandemic conditions during pre-sentence custody was set out in R. v. Marshall, 2021 ONCA 344, in which the Court of Appeal stated, at para. 50:
A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: […]. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.
40In my view, given the lengthy sentence being imposed on Ms. Cleroux today, the granting of some months of extra credit for the extraordinarily harsh conditions at the jail for the last few months will not result in a disproportionately low or inappropriate sentence. In considering Duncan and Marshall, I am prepared to reduce the sentence to be imposed on Ms. Cleroux by an additional four months due to the circumstances of her pre-sentence custody during the recent stages of the pandemic.
41The total amount by which Ms. Cleroux’s sentence will be reduced for pre-sentence custody and Summers and Duncan credit will be 16 months.
CONCLUSION
42The total sentence to be imposed is the equivalent of seven years jail, and will be broken down as follows:
Count 1 s. 403 Personation at Originelle Fertility Clinic 3 years jail, less PSC (eight months, credited for 16 months) for a remaining sentence of 20 months;
Count 5 s. 403 Personation at Argyle Clinic 3 years consecutive
Count 6 s. 267 Assault with a weapon, by injecting patients under fraudulent circumstances 1 year consecutive
Count 4 s. 266 Assault, by handling Argyle patients under fraudulent circumstances 1 year concurrent
Counts 2, 3 & 7 ss. 368, 362 & 362, involving fraudulent documents 1 year concurrent, each
43With credit for pre-sentence custody, Ms. Cleroux will have a remaining 68 months (five years, eight months) to serve in a federal penitentiary.
ANCILLARY ORDERS
44The offence under s. 267 is a primary designated offence for the DNA databank, pursuant to s. 487.04 of the Code. An order for a sample of DNA will be made for this offence.
45Ms. Cleroux will be prohibited from the possession of firearms, ammunition or explosive substances for 10 years, pursuant to s. 109 of the Criminal Code.
Released: April 22, 2022 Justice Robert Wadden
[1] J.D. [2] A.D. [3] M.H. [4] C.T.